“Keep law and form and due proportion”* - ECJ on IP-addresses for IP-rights

Posted on January 29, 2008 | Filed Under communication technologies 

Today, the European Court of Justice gave judgment in the case C-275/06 Promusicae. The Grand Chamber of the Court ruled that Member States are not obliged to require telecoms operators to pass on personal data (IP-addresses of the users of P2P-services) to copyright holders in order to ensure effective protection of copyright in the context of civil proceedings. The Court does not, however, completely rule out that such obligations may be set in national law, but stresses that Member States have to

“take care to rely on an interpretation … which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives [2000/31/EC, 2001/29/EC, 2004/48/EC, 2002/58/EC], the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.”

Stressing the principle of proportionality, the Court takes up an issue that was dealt with more in depth in the opinion of advocate general Kokott. In number 119 of the opinion (not yet available in English) she pointed out that

“Par conséquent, la possibilité de communiquer des données à caractère personnel relatives au trafic peut être limitée à des cas particulièrement graves, comme, par exemple, aux actes commis dans un but lucratif, c’est-à-dire à une utilisation illégale d’œuvres protégées qui porte lourdement atteinte à leur utilisation économique par le titulaire du droit.”
(Roughly translated: “Therefore, the possibilty of communicating personal traffic data could be limited to particularly serious cases, as for example acts with the aim of making a profit, i.e. an illegal usage of protected works which severly harms their commerical use by the rights holders.”)

*Shakespeare, King Richard II, Act III, Scene 4

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3 Responses to ““Keep law and form and due proportion”* - ECJ on IP-addresses for IP-rights”

  1. File-Sharing: One more question for the ECJ! : contentandcarrier on January 29th, 2008 4:12 pm

    […] “Keep law and form and due proportion”* - ECJ on IP-addresses for IP-rights […]

  2. Lex Ferenda » Pro-Music? on February 4th, 2008 2:18 pm

    […] not flowing directly from copyright law nor from the EU directives as implemented domestically?) Content and Carrier IP […]

  3. ISPs as “intermediaries”: ECJ affirms rightholders may seek injunction against ISPs in filesharing cases : contentandcarrier on March 5th, 2009 11:06 am

    […] a full judgment, but rather saw this question answered already in the Promusicae-Case (see already here), where it had stated (in Nr. 54):  “The conclusion must therefore be that Directive […]

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